Her Majesty the Queen - v. -, 2015 SKPC 166

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 166 Date: November 25, 2015 Information: 24442867 Location: Beauval _____________________________________________________________________________ Between: Her Majesty the Queen - and - Leroy Joseph Iron Appearing: Gregory Lyndon For the Crown Ronald Piché For the Accused VOIR DIRE DECISION M. MARTINEZ , J Background [ 1 ] On February 8, 2014, Leroy Iron was charged with two drinking and driving offences. First, that he operated a motor vehicle while his ability to do so was impaired by alcohol contrary to s. 253(1) (

a) of the Criminal Code . Second, that he operated a motor vehicle after consuming enough alcohol that the concentration of alcohol in his blood exceeded .08 milligrams in 100 millilitres of blood contrary to s. 253(1)(

b) of the Code . For the sake of brevity, in the remainder of this decision I refer to the latter offence as the “over .08” offence.

[2] In relation to the “over .08” offence, Mr. Iron applied to exclude the Certificate of a Qualified Technician on two grounds.First, that the arresting peace officer did not have reasonable grounds to arrest him and demand that he provide samples of his breath foranalysis, and second, that the officer had infringed his right to consult counsel as guaranteed under subsection 10(

b) of the CanadianCharter of Rights and Freedoms. Reasonable Grounds for Arrest and Breath Demand Legal Principles [3] A police officer may arrest a person without a warrant if the officer believes, on reasonable grounds, that the person is aboutto commit or has committed an indictable offence; see Criminal Code, RSC 1985, c C-46, s. 495(1)(a).

The offences of impaired drivingand “over .08” may be prosecuted by way of indictment; see sections 253 and 255 of the Criminal Code. [4] Reasonable grounds to believe that a person has committed or is about to commit a crime means more than a mere suspicionbut does not mean that the officer must be certain.

Reasonable grounds means that the reasons for the officer’s subjective belief that theperson probably committed a crime or was about to commit a crime were objectively reasonable; see: R v Storrey, [1990] 1 SCR 241 at p250, (SCC); R v Mouland, 2007 SKCA 105, at para 22; R v Gunn, 2012 SKCA 80, at paras 7 and 8. [5] Similarly, a police officer may demand that a suspect provide samples of their breath for analysis if the officer hasreasonable grounds to believe that, within the preceding three hours, the suspect has committed a drinking and driving offence under s.253 of the Code; see s. 254(3).

Whether or not the officer’s grounds were reasonable is a question of mixed fact and law. It includessubjective and objective components in that the officer must have an honest belief that the suspect committed an offence under s. 253 ofthe Criminal Code, and there must be reasonable grounds for that belief.

However, the officer’s grounds need not amount to a primafacie case for conviction; see R v Shepherd, 2009 SCC 35, at paras 17 and 23, [2009] 2 SCR 527. [6] In R v Gunn, at paragraphs 7 and 8, the Court of Appeal of Saskatchewan described the standard against which the officer’sgrounds for belief must be measured and how a trial judge should assess that belief: …the standard of “reasonable grounds to believe” is one of lesser probability which simply requires the reviewing court to determinewhether the factors articulated by the officer who made the breath-demand were reliable and were capable of supporting the officer’sbelief that the individual had driven while impaired or “over .08” within the preceding three hours.

Where an individual challenges the validity of a breath-demand on the basis that the police officer’s belief was not reasonable, thequestion for the trial judge is whether, on the whole of the evidence adduced, a reasonable person standing in the shoes of the officerwould have believed the individual’s ability to operate a motor vehicle was impaired. Facts [7] In the early morning hours of Saturday, February 8, 2014, RCMP Constables Savill and Kenny were randomly stoppingvehicles to check vehicle registration, driver’s licences, and driver sobriety, near Amy’s Bar & Grill, just outside of Beauval,Saskatchewan.

At 1:35 a.m. the officers stopped a grey van after it left Amy’s Bar & Grill. The driver was sober and her documentationwas in order. The driver told the officers that a man named Leroy, who drove a black truck, was drunk. [8] At about 1:50 a.m., while parked at the Beauval airport exit about 200 to 300 metres from the parking lot of Amy’s Bar &Grill, the constables saw a black pickup truck leave the bar and drive northbound on the highway. Constable Kenny activated the policetruck’s emergency lights and the black truck pulled over almost immediately.

In cross-examination, Constable Savill confirmed thatthere was nothing untoward about how the black truck was being driven, or how or where it stopped when pulled over by the police. [9] Constable Savill testified that as he approached the driver’s side of the truck, he detected the smell of alcohol in the air, sawmany empty beer cans in the truck box, and saw that the driver’s side window was rolled down. The male driver identified himself asLeroy Iron. The officer asked Mr. Iron whether he’d been drinking and Mr. Iron replied, “Yeah, I’ve had a couple.” Constable Savilltestified that Mr.

Iron’s speech was slurred, his eyes appeared glossy, and that he had a strong odour of beverage alcohol on his breath.Without any prompting from the officer, Mr. Iron laughed and blurted out, “Oh oh, I guess I’m in trouble now.” In his testimony,Constable Savill noted that when Mr. Iron said the word “guess” it came out more like “guesh”.

[ 10 ] At this point, Constable Savill told Mr. Iron to turn off the truck’s engine. When Mr. Iron removed the keys from the ignition, they slipped out of his hand. As Constable Savill described it, Mr. Iron then fumbled around the floor of his truck on the driver’s side, trying to retrieve the keys. When he located them, he put them on the dashboard. Constable Savill testified that he believed Mr. Iron may have dropped the keys because his motor skills were impaired. [ 11 ] After putting the truck keys on the dashboard, Mr. Iron undid his seatbelt, and stepped out of his truck without being asked to do so.

Constable Savill said that Mr. Iron stumbled forward when he stepped out of the truck. At this point, the constable decided that he had reasonable grounds to arrest Mr. Iron for impaired driving and he did so. Mr. Iron stumbled again as he walked from his truck to Constable Savill’s police vehicle. The constable then assisted Mr. Iron to the police vehicle so that he would not slip and fall on the snowy and icy surface of the highway. [ 12 ] In the police truck, Constable Savill demanded that Mr. Iron provide samples of his breath for analysis. [ 13 ] Mr. Iron’s version of events is markedly different.

He testified that the vehicle stop took place three to four kilometres from Amy’s Bar & Grill. He said that, without asking him any questions, Constable Savill opened the driver’s door of his truck and arrested him immediately. He testified that the constable, not he, turned off the truck’s engine and placed the keys on the dashboard. [ 14 ] The Crown then called Constable Pardy in rebuttal. Constable Pardy was called to the scene to assist with the lone female passenger in the truck, Mr. Iron’s wife, Ramona. Constable Pardy confirmed that she located Mr.

Iron’s truck with an RCMP vehicle parked behind it on the northbound side of Highway 155. She testified that the vehicles were “near Amy’s”. Analysis [ 15 ] Mr. Iron’s counsel submitted that Constable Savill’s arrest of Mr. Iron was much too hasty and that, based on his client’s account, the officer could not have had reasonable grounds for arrest. He submitted that there was no reason not to believe Mr. Iron. I disagree with that submission. [ 16 ] Unlike the police officers who testified, Mr. Iron had been drinking that night, which, in and of itself, puts the accuracy of his memory in question.

More importantly, his story of being unceremoniously arrested by Constable Savill does not have an air of reality about it. His recollection about where the arrest took place – a few kilometres from Amy’s Bar & Grill rather than a few hundred metres away – was contradicted by Constables Savill and Pardy. Although no one asked Constable Pardy for an estimate of the distance from Amy’s to where she found Mr. Iron’s truck and the RCMP vehicle, I interpret “near Amy’s” to mean that the vehicles were where Constable Savill said they were, as opposed to several kilometres from Amy’s Bar & Grill as Mr.

Iron believed them to be. [ 17 ] In the end, Mr. Iron’s testimony was entirely self-serving and I did not find him to be a credible witness. Having said that, based on the evidence I do accept from the police officers, I still must decide whether Constable Savill had reasonable grounds to arrest Mr. Iron. [ 18 ] I find that Constable Savill’s grounds for believing that Mr. Iron had committed a drinking and driving offence under s. 253 of the Code were objectively reasonable. Although there was nothing wrong with the manner in which Mr.

Iron drove or parked his truck, Constable Savill noted that his speech was slurred, his eyes appeared glossy, his breath smelled of beverage alcohol, he admitted having “a couple” of drinks, he laughed and said “Oh oh, I guesh I’m in trouble now”, his truck keys dropped from his hand after he removed them from the ignition, he exited his truck without being asked to do so, and he stumbled when he stepped out of the truck. Faced with this evidence, a reasonable person would believe that Mr. Iron’s ability to drive his truck was impaired by alcohol. Was Mr. Iron’s Right to Counsel Infringed?

Relevant Facts [ 19 ] Constable Savill arrested Mr. Iron for impaired driving at about 1:50 a.m. After safely securing Mr. Iron in his police vehicle, at about 1:54 a.m., Constable Savill read him his right to counsel from his RCMP-issued card. The contents of the card inform a detainee of their right to consult a lawyer including free Legal Aid duty counsel services. At 1:55 a.m., Mr. Iron said that he understood and that he wished to speak to Ron Piché. Constable Savill did not leave for the Beauval RCMP detachment immediately. He waited until he was

sure that Mr. Iron’s truck was secure and that Mr. Iron’s wife was safely looked after by Constable Pardy. For these reasons, he left thescene at 2:07 a.m. and arrived at the detachment at 2:18 a.m. [20] After completing the usual preliminary police booking procedures, he took Mr. Iron to a secure room equipped with atelephone. As Mr. Iron did not know Mr. Piché’s telephone number, Constable Savill looked for Mr. Piché’s contact information in thetelephone book. Constable Savill also searched the internet for additional telephone contact information for Mr. Piché. He found morethan one telephone number for Mr.

Piché and called all of them without successfully reaching him. The officer left call-back messageswhenever that was an option. Mr. Iron was present throughout this process and knew that Constable Savill was not having successcontacting Mr. Piché and that he was leaving messages for him. More than once during this period, Constable Savill asked Mr. Ironwhether he wanted to call any other lawyers or speak to Legal Aid duty counsel, and Mr. Iron did not indicate that he wanted to speak toanyone other than Mr. Piché. After spending 18 minutes unsuccessfully trying to contact Mr.

Piché, Constable Savill asked him whetherhe would provide breath samples without speaking to Mr. Piché. [21] At 2:42 a.m. Mr. Iron agreed to provide breath samples and Constable Savill took him to a qualified technician in anotherroom of the detachment. Mr. Iron provided two samples of his breath, the first at 3:04 a.m. and the second at 3:26 a.m. The results of theanalysis of Mr. Iron’s breath samples appear in the Certificate of a Qualified Technician that Mr. Iron seeks to exclude from evidence athis trial. [22] Although Mr.

Iron testified in the voir dire, he did not offer any testimony about exercising his right to counsel and no onequestioned him about it. Argument [23] Mr. Iron’s counsel submitted that I should exclude from evidence the Certificate of a Qualified Technician as his client’sconstitutionally guaranteed right to counsel was infringed because, although he waived his right to counsel, his waiver was notunequivocal because Constable Savill had not given him what is commonly referred to as a Prosper warning. [24] Crown counsel countered that Mr. Iron did not waive his right to counsel.

Rather, in the circumstances, he had not beenreasonably diligent in pursuing his right, in which case there is no need for a Prosper warning and no infringement of his right tocounsel. Legal Framework [25] Under

section 10(

b) of the Charter, a person who is arrested or detained by the police is guaranteed the right to retain andinstruct counsel without delay and must be informed of that right. A detainee’s right to counsel imposes informational andimplementational obligations on the police. In R v Bartle, [1994] 3 SCR 173, at p 192, (SCC), Chief Justice Lamersummarized those obligations as follows: This Court has said on numerous previous occasions that s. 10(

b) of the Charter imposes the following duties on state authorities whoarrest or detain a person: (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aidand duty counsel; (2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right(except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases ofurgency or danger). [26] Subject to certain exceptions involving relatively short detentions, these obligations are triggered immediately upon asuspect’s arrest or detention; see R v Suberu, 2009 SCC 33, [2009] 2 SCR 460, at para 41.

[27] The first obligation described by Lamer, CJ is the informational component. The second and third duties are implementationaland are triggered when a detainee expresses their desire to exercise their right to retain and instruct counsel; see R v Willier, [2010] 2SCR 429, 2010 SCC 37, at paras 30 and 31. [28] A detainee who asserts their right to counsel may choose to speak to a free legal advice service or they can choose to contact aspecific lawyer.

The authorities must do what they can to facilitate that contact and must hold off their investigation of the detainee untilthe detainee has had a reasonable opportunity to consult counsel; see R v Prosper, [1994] 3 SCR 236, at p 270, (SCC),and Willier at para 32. [29] A detainee who expresses an intention to speak to a lawyer and who is given a reasonable opportunity to do so can later waivetheir right to counsel. If the detainee has been reasonably diligent in exercising their right to counsel, their subsequent waiver must beclear and unequivocal.

For this reason, the Supreme Court of Canada imposed a further informational obligation on the police when areasonably diligent suspect expresses an intention to waive their right to counsel; see Prosper, at pp 274-275, per Lamer, CJC: In circumstances where a detainee has asserted his or her right to counsel and has been reasonably diligent in exercising it, yet has beenunable to reach a lawyer because duty counsel is unavailable at the time of detention, courts must ensure that the Charter-protected rightto counsel is not too easily waived.

Indeed, I find that an additional informational obligation on police will be triggered once a detainee,who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of theobligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentiallyincriminating process until he or she has had that reasonable opportunity.

This additional informational requirement on police ensuresthat a detainee who persists in wanting to waive the right to counsel will know what it is that he or she is actually giving up. Given the importance of the right to counsel, I would also say with respect to waiver that once a detainee asserts the right there must be aclear indication that he or she has changed his or her mind, and the burden of establishing an unequivocal waiver will be on the Crown. Further, the waiver must be free and voluntary and it must not be the product of either direct or indirect compulsion.

This Court hasindicated on numerous occasions that the standard required for an effective waiver of the right to counsel is very high. As I said inBartle, at pp. 192-94 and 206, a person who waives a right must know what he or she is giving up if the waiver is to be valid. That beingsaid, it stands to reason that the right to counsel guaranteed under s. 10(

b) must not be turned into an obligation on detainees to seek theadvice of a lawyer. [emphasis in original; citations in original are deleted] And at p 278: In addition, once a detainee asserts his or her right to counsel and is duly diligent in exercising it, thereby triggering the obligation on thepolice to hold off, the standard required to constitute effective waiver of this right will be high.

Upon the detainee doing somethingwhich suggests he or she has changed his or her mind and no longer wishes to speak to a lawyer, police will be required to advise thedetainee of his or her right to a reasonable opportunity to contact counsel and of their obligation during this time not to elicitincriminating evidence from the detainee. [30] In R v Luong, 2000 ABCA 301, the Alberta Court of Appeal provided trial courts with an 11-step template for analyzingapplications for exclusion of evidence founded upon an alleged breach of s. 10(b): 1.

The onus is upon the person asserting a violation of his or her Charter right to establish that the right as guaranteed by the Charterhas been infringed or denied.

Section 10(

b) imposes both informational and implementational duties on state authorities who arrest or detain a person. 3. The informational duty is to inform the detainee of his or her right to retain and instruct counsel without delay and of the existenceand availability of Legal Aid and duty counsel.

4. The implementational duties are two-fold and arise upon the detainee indicating a desire to exercise his or her right to counsel. 5. The first implementational duty is “to provide the detainee with a reasonable opportunity to exercise the right (except in urgent anddangerous circumstances)”. 6. The second implementational duty is “to refrain from eliciting evidence from the detainee until he or she has had that reasonableopportunity (again, except in cases of urgency or danger)”. 7.

A trial judge must first determine whether or not, in all of the circumstances, the police provided the detainee with a reasonableopportunity to exercise the right to counsel; the Crown has the burden of establishing that the detainee who invoked the right to counselwas provided with a reasonable opportunity to exercise the right. 8. If the trial judge concludes that the first implementation duty was breached, an infringement is made out. 9.

If the trial judge is persuaded that the first implementation duty has been satisfied, only then will the trial judge consider whetherthe detainee, who has invoked the right to counsel, has been reasonably diligent in exercising it; the detainee has the burden ofestablishing that he was reasonably diligent in the exercise of his rights. 10. If the detainee, who has invoked the right to counsel, is found not to have been reasonably diligent in exercising it, theimplementation duties either do not arise in the first place or will be suspended. In such circumstances, no infringement is made out. 11.

Once a detainee asserts his or her right to counsel and is duly diligent in exercising it, (having been afforded a reasonableopportunity to exercise it), if the detainee indicates that he or she has changed his or her mind and no longer wants legal advice, theCrown is required to prove a valid waiver of the right to counsel.

In such a case, state authorities have an additional informationalobligation to “tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of thepolice during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he orshe has had that reasonable opportunity” (sometimes referred to as a “Prosper warning”).

Absent such a warning, an infringement ismade out. [citations included in the original are deleted] [31] Our Court of Appeal implicitly endorsed this approach in R v Basko, 2007 SKCA 111 and, since then, it has been consistentlyapplied by all Saskatchewan trial courts. Analysis [32] Constable Savill told Mr. Iron about his right to counsel shortly after arresting him. Mr. Iron understood this right and wishedto consult a specific lawyer. The next question is whether Constable Savill provided Mr. Iron with a reasonable opportunity to contacthis counsel of choice.

In situations where the police control the telephone and make the calls for the detainee, this implementational dutymeans that the police must do at least as much as the detainee would have done in trying to contact their counsel of choice; see R vTurnmire, 2014 SKPC 2 , 2014 SKPC 002, at para 29. [33] Constable Savill looked in the telephone directory and online for Mr. Piché’s contact information. He found several telephonenumbers and called all of them. He left messages for Mr. Piché at every opportunity. For this reason, I am satisfied that Constable Savilldid everything he could do, and everything Mr.

Iron could and would have done, to contact Mr. Piché in the wee morning hours on aSaturday in February. But the question remains whether this amounts to reasonable diligence in exercising the right to counsel. Is theremore Mr. Iron should have done? [34] Despite being asked more than once, Mr. Iron never took advantage of the opportunity to call any other lawyers or to speak toLegal Aid duty counsel. In addition, when Constable Savill asked him whether he’d provide breath samples if he could not speak to Mr.Piché, Mr. Iron did not ask to wait longer for a return call from Mr.

Piché nor did he ask to call anyone else.

[35] Under s. 258(1)(

c) of the Criminal Code, the Crown can rely on the analysis of a suspect’s breath samples as conclusive proofof the concentration of alcohol in their blood at the time of driving if the first of the samples is taken within two hours after the drivingoffence. The alleged driving offence happened at about 1:50 a.m. This means that, in order to rely on the s. 258(1)(

c) presumption,Constable Savill had until 3:50 a.m. to obtain Mr. Iron’s first breath sample. Of course, he did not have to wait until the last minute.However, he devoted only 18 minutes to trying to reach Mr. Piché before asking Mr. Iron whether he would provide breath samples. Mr.Iron provided his first breath sample at 3:04 a.m., a full 46 minutes before the s. 258(1)(

c) window closed. The officer did not tell Mr.Iron that he had some time to wait for a return call from Mr. Piché before providing breath samples, nor did he remind Mr. Iron, one finaltime, that he could call another lawyer or Legal Aid duty counsel before agreeing to provide breath samples. Further, Constable Savilldid not consider giving Mr. Iron a Prosper warning before obtaining breath samples from him. In cross-examination, he admitted that heunderstood that warning was to be used only if he wished to question a detainee who had tried but who had not been able to contact theirlawyer.

He did not know that the warning applied to obtaining other evidence, such as breath samples, from a detainee. [36] Presumably, Chief Justice Lamer’s reason for requiring that a detainee be reasonably diligent in exercising their right tocounsel before the police are required to give them a Prosper warning was so that a detainee who said they wanted to speak to a lawyer,and who was given an opportunity to do so, but who did virtually nothing to exercise their right, could not later say that the authoritieshad denied them their right to counsel.

However, there are many cases with fact situations similar to the one before me, whichdemonstrate that what is and what is not reasonably diligent is not easily defined. [37] The following two examples fall on the side of the debate favoured by the Crown, namely that, on the facts before me, Mr.Iron did not waive his right to counsel and was not reasonably diligently in exercising that right. [38] In R v Porter, 2015 SKQB 181, an RCMP officer arrested the defendant for impaired driving in the early morning hours.When asked if he wanted to speak to a lawyer, the defendant replied, “I think I’d better.” The arrest took place in rural Saskatchewan.

Ittook 30 to 35 minutes to transport the defendant to the nearest police detachment. At the detachment, with the assistance of the arrestingofficer, the defendant attempted to contact a specific lawyer. The officer placed two calls, nine minutes apart, to the telephone numbergiven to him by the defendant. The lawyer did not answer either call. The officer left a call-back message each time. After eachunsuccessful call, the officer told the defendant what had happened and asked him whether he wanted to call another lawyer. Each timethe defendant said that he wanted to speak only to his lawyer of choice.

The officer did not look for another telephone number for thatlawyer, nor did the defendant ask him to do so. The officer did not give the defendant a telephone book and the defendant did not ask himfor one. After the second telephone call, the defendant agreed to provide samples of his breath. The first sample was taken only 15minutes before the s. 258(1)(

c) two-hour window closed. After an exhaustive review of the relevant cases, Mr. Justice Layh affirmed thetrial judge’s decision that the defendant had not waived his right to counsel and had not been diligent in exercising it. [39] In R v Herman, 2001 SKQB 100 , 204 Sask R 79, the defendant was arrested for impaired driving at 2:55 a.m. andinformed of his right to counsel. The defendant told the arresting officer that he wanted to speak to a specific lawyer. The officer gavehim the lawyer’s office and home telephone numbers and allowed the defendant to place the calls himself.

He made two calls to thelawyer’s home number. The calls were 10 minutes apart. After the second call, the defendant left a message asking the lawyer to call himback. The arresting officer then asked the defendant whether he wanted to call another lawyer. He did not. The officer then told him hecould call Legal Aid duty counsel for free legal advice. Again he declined the opportunity. The two-hour time limit was not in jeopardy.Instead of waiting to see whether his lawyer would call back, the defendant gave two samples of his breath for analysis.

On these facts,Justice Kreuger affirmed the trial judge’s conclusion that the defendant had not been reasonably diligent in exercising his right tocounsel, applying the following principles: [15] Every arrested or detained person has, pursuant to s.10(

b) of the Charter, a right to counsel of choice. The police have anobligation to provide that person with a reasonable opportunity to contact counsel of choice. The right to counsel of choice may beforfeited in one of two ways: (

a) by waiver; or (

b) by failing to be reasonably diligent in exercising the right. Waiver of the right to counsel of choice will be found only in the clearest of cases. What amounts to failure to be reasonably diligent inthe exercise of the right to counsel of choice will depend upon many factors, including but not limited to, urgency of need, nature of thecharge or reason for the detention and reasonable expectation of making contact with counsel of choice in the circumstances. [17] ... In the absence of a reasonable request, I am of the opinion that the police need not wait until the last moment before taking

a breath sample. As long as a detained person is diligently attempting to exercise the right to counsel of choice the police ought, withinreason, to accommodate that attempt. But at some point counsel of first choice may have to be abandoned if a detained person is toreceive necessary legal advice. [40] The following two cases emanating from the same court illustrate the opposite point of view. [41] In R v Wohlberg, 2003 SKQB 75 , 230 Sask R 196, the defendant wanted to speak to a specific a lawyer after hisarrest for impaired driving.

At the police detachment, the arresting officer dialed the lawyer’s office number and then his hometelephone number. Both calls failed to reach the lawyer. After the second call, the officer asked whether the defendant wanted to speakto Legal Aid. He insisted that he wanted to speak to his lawyer of choice. The officer did not give him a Prosper warning and escortedhim to the breathalyzer room where he provided two samples of his breath. More than 35 minutes of the two-hour window remained.Sitting on appeal, Mr.

Justice Klebuc (as he then was), found that the defendant had not unequivocally waived his right to counsel andthat the police officer had denied him that right. In these circumstances, the arresting officer should have given the defendant a Prosperwarning. [42] In R v Niles, 2000 SKQB 63 , 191 Sask R 94, the defendant was arrested for impaired driving and given his right tocounsel at 9:28 p.m. About 12 minutes later, at the police detachment, the arresting officer put the defendant in an interview roomequipped with a telephone.

The defendant made several telephone calls attempting to contact a particular lawyer, but was unsuccessful.After the last of these calls, the arresting officer reminded him that he could contact Legal Aid and offered to give him the necessarytelephone numbers. The defendant insisted that he did not want to speak to Legal Aid. Shortly after this conversation, at about 9:56 p.m.,the officer took the defendant to an approved breath analysis instrument but the defendant refused to provide samples of his breath. Onthese facts, Mr.

Justice Kovach, reversed the decision in the court below and entered a verdict of not guilty, making the followingcomments: [8] There was no urgency to proceed with taking breath samples at that time or, if the officers perceived urgency, the appellantwas not advised. The invitation to contact Legal Aid, as declined by the appellant, does not constitute an informed waiver of his rights asguaranteed by s. 10(

b) of the Charter, absent some explanation as to why he could no longer await counsel of his choice. As stated byLamer C.J.C. in R. v. Bartle (1994), (SCC), 33 C.R. (4th) 1 (S.C.C.) at para 20: [20] . . . Authorities will have to take additional steps to ensure that the detainee comprehends his or her s. 10(

b) rights. Likewise, thiscourt has stressed on previous occasions that, before an accused can be said to have waived his or her right to counsel, he or she must bepossessed of sufficient information to allow him or her to make an informed choice as regards exercising the right: R. v. Smith, (SCC), [1991] 1 S.C.R. 714, at pp. 724-29, and Brydges, at p.205. [12] Although the learned trial judge correctly pointed out that police officers are not required to be mind readers, in the contextof determining reasonable diligence and waiver, neither is the appellant.

The officers are aware of the procedures involved in obtainingbreath samples, including the time limits prescribed in the Criminal Code. If the appellant's right to consult counsel of his choice, beforeproviding samples of his breath, is to be limited by factors such as timing or his counsel's immediate availability, he must be made awareof these limitations in order to make an informed decision respecting waiver.

The appellant was not so advised in this case and,accordingly, did not waive his right to consult counsel. [43] I find it difficult to discern the relevant factual differences among the above examples which lead the learned justices toopposing conclusions. What is apparent is that the line of reasoning exemplified by Herman and Porter puts the onus on the detainee. Adetainee who does not consult alternate counsel, or does not ask for more time, when their counsel of choice is not immediately available,is not being reasonably diligent in exercising their right to counsel.

The onus is on the detainee no matter whether the police control thetelephone, whether there is any urgent need for the police to obtain evidence from the detainee, or whether the detainee knows what theiroptions may be.

Conversely, Wohlberg and Niles put the onus on the state authorities to ensure, before obtaining evidence from adetainee who has made reasonable, albeit unsuccessful, attempts to consult their counsel of choice, that their waiver of the right tocounsel is an informed waiver, and for this reason, unequivocal [44] In cases where the detainee makes a genuine effort to contact their counsel of choice, I prefer the latter approach. This isespecially so when the police control the telephone. In my view, the reasoning in Wohlberg and Niles places the onus on the appropriateactor.

A detainee who is unsuccessful in contacting their counsel of choice is unlikely to know all of their options unless the police tellthem what those options are. [45] A detainee who expresses a desire to talk to a lawyer, and who makes reasonable attempts to do so, is not required to talk to

another lawyer. They can change their mind. They can agree to answer police questions or provide breath samples before speaking to their lawyer of choice. A detainee who chooses to cooperate with the police after unsuccessfully attempting to contact their counsel of choice is waiving their right to counsel. As Mr.

Piché put it, “A waiver, is a waiver, is waiver.” In order for the waiver of the right to counsel to be unequivocal, that waiver must be fully informed, which is the point made by Chief Justice Lamer in Prosper , and by McLaughlin, CJC and Charron, J for the majority in Willier at para 38 : …a Prosper warning is warranted in circumstances where a detainee is diligent but unsuccessful in contacting a lawyer and subsequently declines any opportunity to consult with counsel.

Section 10( b )’s provision of a reasonable opportunity to consult with counsel is a fundamental guarantee aimed at mitigating a detainee’s legal vulnerability while under state control. It affords detainees the chance to access information relevant to their self-incrimination and liberty interests: Bartle. The Prosper warning ensures that detainees are aware that their right to counsel is not exhausted by their unsuccessful attempts to contact a lawyer.

This additional informational safeguard is warranted when a detainee indicates an intent to forego s. 10( b )’s protections in their entirety, ensuring that any choice to do so is fully informed. In Prosper , the detainee ceded any opportunity to mitigate his legal disadvantage and benefit from the protections afforded by s. 10( b ), triggering the additional informational warning. [underlining added] [ 46 ] If the police treated all such situations as waivers of the right to counsel, it would result in more certain results in the prosecution of drinking and driving offences.

If, in all such cases, police officers gave Prosper warnings to detainees, they would not risk making, what a judge might later find to be, an incorrect judgment about the diligence with which the detainee pursued their right to counsel. [ 47 ] In the case before me, after spending 18 minutes leaving messages for Mr. Piché, there remained more than 46 minutes before the s. 258(1)(

c) window closed. Constable Savill’s “over .08” investigation would not have been jeopardized had he given Mr. Iron a Prosper warning. It would not have been jeopardized if he reminded him that he could try to call another lawyer or Legal Aid duty counsel. Nor would the investigation have been jeopardized had Constable Savill told Mr. Iron that he could wait up to one-half hour for a return call from Mr. Piché if he wished to do so (so that his first breath sample would be taken no later than 15 minutes before the two- hour window closed as occurred in Porter ).

If, after receiving this information from the police officer, Mr. Iron then chose to provide breath samples, there would have been no question that his waiver of the right counsel was unequivocal. [ 48 ] On the facts before me, and for the reasons described above, I find that Mr. Iron waived his right to counsel but that his waiver was not fully informed and unequivocal. For these reasons, his Charter -protected right to counsel was infringed. Remedy [ 49 ] Having concluded that Mr. Iron’s s. 10(

b) right to counsel was infringed, I must decide, under s. 24(2) of the Charter , what should be the consequence of that infringement. In order to resolve this question, I must assess the seriousness of the Charter -infringing conduct and its impact on Mr. Iron’s Charter -protected interests, and then weigh these considerations against society’s interest in having the charge against him adjudicated on its merits; see R v Grant , [2009] 2 SCR 353, 2009 SCC 32 . [ 50 ] Constable Savill was not acting in bad faith when he did not give Mr. Iron a Prosper warning.

He simply did not understand that such a warning applied to detainees who waived their right to counsel in the context of an “over .08” investigation. However, the infringement of a Charter -protected right is a serious matter, whether or not the actions of the police were done in good faith. In this case, the impact of the infringement was significant as Mr. Iron agreed to provide evidence against himself when he may have made other choices had he known his options. [ 51 ] Drunk-driving is a serious problem in Canada. Canadians expect to see drunk-driving charges prosecuted.

However, as Chief Justice Lamer made clear in Prosper , at p. 284, neither the officer’s good faith, nor the relative seriousness of the offence, compensate for infringing a defendant’s Charter -protected right to counsel, and the appropriate remedy is to exclude the evidence obtained as a result of that infringement: The breath samples were conscripted evidence which might not have been obtained had the appellant's s. 10(

b) rights not been infringed. In other words, the breach of the appellant's right to counsel goes directly to his privilege against self-incrimination, and receipt of the breathalyser evidence resulting from this breach would undermine this privilege, thereby rendering the trial process unfair. Neither the undeniable good faith of the police, nor the relative seriousness of the drinking and driving offence with which the appellant was charged can compensate for the adjudicative unfairness which I find admission of the evidence would produce. [ 52 ] For these reasons, I grant the defendant’s application to exclude from evidence, the Certificate of a Qualified Technician.

________________________ M. Martinez, J